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From 

Virginia Law Journal, 

roR December, 1887. 



Thomas Jefferson 



AS A LEGISLATOR. 



R. G. H. Kean. 



THOMAS JEFFERSON 



AS A LEQISIvATOR. 



Thomas Jefferson was born on the 2d of April, 1743, old 
style. He studied law in Williamsburg, Virginia, then the 
colonial capital, under the great lawyer and patriot, George 
Wythe; and, while a law student, in 1765, when the reso- 
lutions against the Stamp Act were under discussion in the 
House of Burgesses, heard Patrick Henry's celebrated 
speech. At twenty-four years of age, in 17(37, he was ad- 
mitted to the bar, and rose at once into a large practice. 
His account books, still extant, show that in 1771, the fourth 
3"ear of his practice, he was engaged in four hundred and 
thirt}'' causes. In 1769 he was elected a member of the 
House of Burgesses from Albemarle county. His success 
as a practising lawyer and as a legislator are the more re- 
markable in view of the fact that he was not noted either 
as an advocate or a debater. It therefore furnishes a col- 
lateral proof of his eminent qualifications in other respects. 

For the time and country in which he lived, his attain- 
ments appear to have been quite remarkable for their variet}- 
as well as for the precision of his knowledge and the range 
and diversity of his learning. In modern times facility in 
travelling has tended in many ways to render the knowl- 
edge of a number of languages comparatively frequent 
among well educated persons. A hundred years ago the 
opportunities and instruments of learning, especial!}' in the 
modern languages, were comparatively few and poor. Even 
as late as 1815, George Ticknor, when he wished to begin 
the study of the German, was obliged to seek a text-book 
by borrowing a copy of " Werther" in one place, a grammar 
45 



2 Thomas Jefferson as a Legislator. 

(an indifferent one) in another, and sending to another 
State for a dictionary. 

Mr. Jefferson's writings indicate no slight acquaintance 
with Greek literature, though he was probably less addicted 
to it than his friend, Mr. Wythe, who was wont to fill the 
blank leaves of his law books with extracts from the Greek 
poets and historians, in exquisitely neat Greek text. Of the 
Latin, Mr. Jefferson was a master. Few of his cotempora- 
ries were as well versed as he in Anglo-Saxon, in which he 
took, early in life, great interest, as the parent stock of the 
Enghsh and the language in which the foundations of the 
common law had been laid.* He wrote and spoke French 
with fiuenc}^ and elegance, having perfected himself in it 
during his four years' residence in Paris. While in Europe 
he also acquired some familiarity with Italian and German 
— enough of the former, at least, to give him access to the 
literature. He was a pioneer in the critical study of the 
languages of North American Indians. 

His mathematical attainments were such that he made 
ready use of fluxiona as an instrument of investigation. I 
have seen the discussion, made with the neatness which 
marked everything from his pen, to determine the curvature 
of the dome to his house at Monticello. An eminent pro- 
fessor of comparative anatomy told me many years ago that 
next to Cuvier, he regarded Mr. Jefferson as the best in- 
formed com})arative anatomist of his time. For over thirty 
years he had availed himself of every opportunity for pro- 
curing vocabularies of the various Indian dialects, oppor- 
tunities which he described as " probably better than will 
ever occur again to any person having the same desire." 
He had digested these in parallel columns for more ready 
comparison, and the whole accumulated treasure only 
awaited the addition of the collections made for him by 
Capt. Lewis, being so nearly ready for the press, when the 
box containing the manuscripts was stolen on the vessel by 
which it was shipped with his other goods from Washington 
to Richmond, and broken open. The disappointed thief 
threw the box and contents into James River. A few leaves 
floated ashore and were found in the mud, so few and so de- 
faced as to be of no practical use. 

Before the Revolutionary War, when he was only from 
twenty-five to thirty years of age, he had designed, by 

*Mr. George Ticknor, describing a visit lie made to Monticello in 1825, 
(just the year before Mr. Jefferson's death) says : " He reads much Greek 
and Saxon."— Life and Letters by Hillard, Vol. I, p. 343. 
/ 
/ 



Thomas Jefferson as a Legislator. 3 

using his extensive acquaintance in tlie State, to arrange a 
system of daily observations of the winds and temperature. 
These it was his purpose to arrange and tabuhite and pre- 
sent to the Philosophical Society at Philadelphia, "in order 
to engage them, by means of their correspondents, to have 
the same thing done in every State and through a series of 
years." The object of this was to determine the relations 
between the winds and temperature (see his letter to Volney 
of 8th January, 1797.) Thus he anticipated by more than 
a century the Meteorological Bureaux of our own and other 
countries. In a letter to Dr. Styles from Paris, 17th July, 
1785, he made a distinct suggestion of the screw propelleV. 
In 1796 he mentions in a letter to General Washington, 
that he had made trial of a drill, to which he refers as "the 
Caroline drill," for sowing a single row of seeds ; and says 
he shall try to make one to sow four rows atc«-time of 
wdieat or peas. While in Paris in 1786, he had a discussion 
with Boutfon on certain points of natural histor}'-; found 
him " absolutely unacquainted" with the elk and deer of 
North America, and procured horns and skeletons to be sent 
him whereby he established his own correctness. In 1785 
he brought to the notice of the Government the invention 
of muskets so made as to be interchangeable in all their parts, 
and took all the steps to cause the introduction of the sys- 
tem into the United States. Every detail for enabling the 
United States to employ this system was furnished by him 
to General Knox, Secretary of War, in 1789. 

And so on, almost without end. No one can read the col- 
lected writings of Mr. Jefferson, especially his letters, im- 
perfectly as they have hitherto been edited, without aston- 
ishment at the variety and minuteness of his observation, 
the boldness and sagacity of his inductions, and the emi- 
nently practical character of his intellect. The directions 
and scope of his speculations and inquiries force one to the 
conclusion that if he had lived at a period or in a State 
where he would have been free to i)ursue the studies in 
wdiich he chiefly delighted, instead of being known to the 
w^orld as a political philosopher, statesman and party-leader, 
he would have been in the very front rank of naturalists 
and inventors. 

In the literature-making portions of the United States it 
has long been the fasliion either to ignore Mr. Jefferson or 
refer to him slightly. If he had lived and done his work 
east of the Hudson or north of the Susquehanna, he would 
be rated to-day far higher among the greatest minds Amer- 



4 Thomas Jefferson as a Legislator. 

ica has produced than he actually is rated, even among- 
well informed people. That due care which his reputation 
has not received in the current literature of the country, 
would then have been bestowed. It would seem that now, 
time enough has elapsed for the antagonisms felt towards 
the party-leader to abate, at least sufficiently for us to begin 
to do justice to the man. As the generation which was 
young when he died has nearly died out, he is falling into 
something like oblivion. Yet he belongs to that order of 
men which no people in justice to themselves can fail to 
keep in perpetual and green remembrance. There is one 
aspect especially of this many-sided intellect which the ap- 
preciation of the public even in his own time and State has 
largely overlooked, namely, his work as a legislator. This 
is not difficult to explain. It is not surprising that the high 
career of the party organizer and politician should have 
thrown into the shade, almost of temporary oblivion, the 
earlier work which Mr. Jefferson did in this less conspicu- 
ous capacity. The arena was comparatively a narrow one — 
the Legislature of his native State. The time when it was 
done was amidst the throes of Revolution and the struggles 
of a war of doubtful issue. The very skill with which 
most of it was adapted to accomplish its ends without any 
shock to society or invasion of vested interests, made the 
transition it was designed to effect from the old to the new 
order, nearly an insensible one. Its leading objects were 
twofold. First, the adaptation of the municipal law of the 
State, to the conditions of Republican life and of civil and 
religious liberty ; and secondly, to effect substantial reforms 
in both the civil and criminal Codes — reforms in many re- 
spects far in advance of any which had then been effected 
in the laws of any English-speaking State. 

Young as Mr. Jefferson was when he entered the Legisla- 
ture of Virginia and the Continental Congress, his acknowl- 
edged abilities as a thinker, a statesman, a jurist, and a 
master of the art of drafting, by the use of language at once 
clear, simple, concise and comprehensive, led to his being 
put in the lead of important committees, by which such 
work was to be done, in every deliberative body of which he 
was a member. When the first Congresses under the Fede- 
ral Constitution met he was Secretary of State, and then Vice- 
President, so that he never sat in the Congress of the United 
States under the Constitution of '89; and hence his skill had 
no opportunity to be exercised (save by way of private sug- 
gestion) in the framing of the statutes by which the present 



Thomas Jefferson as a Legislator. 5 

'Government of the United States was put in operation. The 
body of laws which he drew, or aided in drawing for Vir- 
ginia (excepting a few immediately put on their passage), was 
not enacted at once, but was taken up piecemeal and brought 
upon tlie statute-book, one at a time, tlirough several years, 
and chiefly during the years he was in Europe; so that there 
was little opportunity for his agency in them to become gen- 
erally known. Some of them were never adopted at all, 
notabl}^ his plan for the gradual abolition of slavery in Vir- 
ginia, and his comprehensive scheme for the education of 
the youth of the State, from the earliest primary grades to 
the most advanced fields of the higher education His re- 
formation of the criminal code, too, as we shall see in the 
following pages, proved somewhat in advance of the time, 
and found acceptance a few years later in a modified form. 
The foregoing are some of the causes which have contributed 
to the result, that only among lawyers, and comparatively a 
few of them, is there any appreciation of the very high rank 
Mr. Jefierson deserves to hold as a legislator and a law re- 
former. Another reason is found in his rare and almost 
excessive modesty in the matter of claiming before the world 
his part in any work in which others co-operated at all. 

After the Declaration of Independence had been adopted, 
and the Articles of Confederation reported, in the Continental 
Congress of 1776, on the 2d of September of that year he re- 
signed his seat in Congress, to which he had been re-elected 
by the State Legislature against his protest, and returned to 
A^irginia, to take his seat, by preference, in the lower branch 
of the General Assembly. This body met on the 7th of Oc- 
tober. At this time Mr. Jefferson w^as thirty-three years of 
age. His reason for preferring a seat in the House of Dele- 
gates of his State, to one in Congress, he has himself ex- 
plained. In his " Memoir " he says : " When I left Congress 
in 1776, it was in the persuasion that our whole Code must 
be revised, adapted to our republican form of government, 
and, now that we had no negations of councils, governors and 
kmgs to restram us from doing right, that it should be cor- 
rected in all its parts, with a single eye to reason, and the 
good of those for whose government it was formed." On 
one of the early days of this session he introduced and car- 
ried through an act defining treason, and fixing its punish- 
ment, abolishing corruption of blood. At the same session 
he brought in and carried his act defining " citizenship," 
and recognizing the individual right of ex])atriation, and 
the act abolishing estates tail. The last named, dealing as 



6 Thomas Jefferson as a Legislator. 

it did with a subject on which the ingenuity of the common 
lawyers had exhausted itself in the invention of technicalir 
ties, is drawn with that precision and comprehensiveness so 
characteristic of all his work as a legislator. This was one- 
of the measures b}^ which he designed to root up the feudal 
and aristocratic idea of keeping up the wealth and impor- 
tance of families, and with its twin measure, the statute of 
descents, by which primogeniture and the preference of 
males were abolished (to which more particular attention 
will be given further on), fully accomplished that object. 

At an early day in the same session (October, 1776) he 
introduced a bill " for the revision of the laws." It passed 
October 24th, and on November 5th, by a joint vote of the twO' 
Houses, Thomas Jefferson, Edmund Pendleton, George 
Wythe, George Mason and Thomas Lightfoot Lee were ap- 
pointed a committee to do the work. Naturally Mr. Jeffer- 
son, as the patron and author of the measure, was the chair- 
man of the committee. He was first named in the resolution 
appointing them, and his name is first signed to the report 
subsequently made when the work was done. But nowhere 
in his writings have I found that he has stated that he was 
the chairman. The members of this committee met in Jan- 
uary, 1777, at Fredericksburg (a point central and relatively 
convenient to all except INIr. Jefferson), to take a general 
view of the work to be done, settle a few leading principles, 
and distribute the task among the members of the commit- 
tee. When the distribution came to be made, Mr. Mason 
and Mr. Lee excused themselves, on the ground that not 
being lawyers they felt unqualified to take any part of it. 
Soon after this meeting Mr. Lee died, and Mr. Mason re- 
signed from the committee. Under the bill for their ap- 
pointment the committee had the power to fill vacancies; 
but this the remaining members did not feel called on to 
do, the leading principles fixing the lines on which the work 
should proceed having been already agreed on by the whole 
original committee. In the distribution made, the common 
law and British statutes down to the fourth year of James I 
(1607), the date of the foundation of the colony, were assigned 
to i\Ir. Jefferson ; the British statutes from that date to 1776 
to Mr. Wythe ; and the colonial statutes to Mr. Pendleton. 
Obviously Mr. Jefferson had the laboring oar. 

These three, having respectively gone through their sev- 
eral tasks, met again at Williamsburg in February, 1779, ta 
compare their work. Together they went critically over the- 
whole, sentence by sentence, and separated again, that each 



Thomas Jefferson as a Legislator. 7 

might have made fair corrected copies of his portion. On 
the 18th June, 1779, tlie whole was reported to the Legisla- 
ture by Jefferson and Wythe. Mr. Pendleton (owing to the 
illness of a child) did not attend, and his colleagues, linding 
that in preparing his portion he had simply copied out the 
original text of such of the colonial statutes as had been 
agreed to be retained, they re-drew the whole of them, to 
purge them of redundant words, and, as Mr. Jefferson ex- 
l^ressed it, " to assimilate the plan and execution of this to 
the other parts of the work." 

While this revisal was in hand, an annual session of the 
General Assembly came on, in the fall of 1778, and Mr. Jef- 
ferson was in his seat. At the preceding session he had 
brought in bills for organizing the courts — a court of ap- 
peals, a court of chancery, a general court (with appellate 
jurisdiction in criminal cases), and courts of assize. These 
measures had been crowded out by other work having rela- 
tion to the state of war. They were now brought forward 
by him again, and passed. His former preceptof and vene- 
rated friend was elected one of the three Chancellors. A 
later act provided that upon the death or resignation of two 
of the Chancellors, no appointments should be made, to the 
end that there should ultimately be but one. By survivor- 
ship Mr. Wythe became, and for many years continued to 
be, the sole Chancellor of Virginia, and is known and reve- 
renced in that State, as "Chancellor Wythe," much as "Chan- 
cellor Kent " is in New York — clarum et venerahile nomen. 

The report of the revisors embraced 126 separate bills, 
some of which were introduced and passed before the gene- 
ral report was submitted. Of these the act prohibiting the 
slave trade was one. These bills w^ere not adopted as a code, 
or single statute, nor otherwise acted on as one harmonious 
whole. Some idea of the condensation which had been ef- 
fected may be gathered from the fact that they were all 
printed on ninety folio pages. It was one of the cherished 
hopes of the authors that the style of these bills, in which 
clearness and succinctness w^ere sought to be combined, would 
tend to work a reformation in the vicious tautological style 
of the more recent British and colonial legislation — a hope 
realized in the period which has intervened, only to a mod- 
erate extent, in current legislation. But its iniluence was 
distinctly manifest in the Virginia Code of 1840, prepared 
by the late Conway Robinson and John M. Patton. 

" Inter arma leges silent. Mr. Jefferson was elected Governor' 
of A^irginia a few days after the Revisal was reported to the 



8 Thomas Jefferson as a Legislator. 

Legislature (June, 1779). His term was a storni}^ one. The 
invasions of Arnold and Conwallis, and the conquest by 
Virginia of the Northwest Territory, gave the executive and 
Legislature much to occupy their attention, apart from the 
lowering aspect of the general affairs. Accordingly nothing- 
was attempted to be done with the revision, except to print 
the proposed bills, until after peace with Great Britain had 
been signed, and Mr. Jefferson had gone to Europe as one 
of the plenipotentiaries of the United States with Mr. Adams, 
whom he regarded and treated as his senior in that com- 
. mission. His residence in Paris in that character continued 
from 1784 until the fall of 17S9, when, having returned to 
the United States, he became Secretary of State in the first 
Cabinet. 

_ During his absence abroad, and after a year of peace had 
given the country a breathing space, the General Assembly 
in 1785, and subsequent sessions, adopted a number of the 
bills reported by the revisers. It was unfortunate that none 
of them w«*e at hand to explain and advocate their work as a 
ivhole.^ Mr. Jefferson was in Europe; Pendleton and Wythe 
were judges. Among the earher bills so passed, championed 
by Mr. Madison, then a young man, but already great in de- 
bate, as well as in council, was the celebrated "Act for Es- 
tablishing Religious Freedom." On the 13th August 
1786, Mr. Jefferson wrote from Paris to Chancellor Wythe 
as follows: 

" The European papers have announced that the Assembly of Virginia 
were occupied on the revisal of their Code of laws. This, with some 
other similar intelligence, has contributed much to convince the people 
of Europe that what the English papers are constantly publishing of our 
anarchy is false ; as they are sensible that such a work is that only of a 
people who are in perfect tranquility. Our act for freedom of religion 
is extremely applauded. The ambassadors and ministers of the several 
nations of Europe, resident at this court, have asked of me copies of it, 
to send to their sovereigns, and it is inserted at full length in several 
books now in the press, among others in the New Encyclopaedia." 

The concluding clause of this celebrated statute has fur- 
nished a striking instance of a repealable act, admiting on 
its face that it is repealable at the pleasure of any other 
General Assembly, but coupling that declaration with a 
statement of principle so cogent as to give to the law a char- 
acter more durable than any mere constitutional provision. 
It is in these lofty words: 

"And though we well know that this Assembly, elected by the people 
for the ordinary purposes of legislation only, have no power to restrain 



Tliomas Jefferson as a Legislator. 9 

the acts of siu-cedin^ Asseml)lies, constituted with })owers equal to our 
own, and tliat therefore to declare this act irrevocable would be of no 
effect in law, yet we are free to declare, and do declare, that the rights 
hereby asserted are of the natural rights of mankind, and that if any act 
shall be hereafter passed to repeal the present, or to narrow its opera- 
tion, such act will be an infringement of natural right." 

Among the bills of a general character drawn by Mr. 
Jefferson were three upon a subject which always lay near 
his heart. He describes them as parts of a connected whole, 
•embracing "a systematic plan for general education, reach- 
ing all classes of free persons: 1st, Elementary schools for 
all children generally, rich and poor; 2d, Colleges for a 
middle degree of instruction, calculated for the common 
purposes of life, and such as would be desirable for all who 
were in easy circumstances; 3d, An ultimate grade for 
teaching the sciences generally, and in their highest degree." 
These bills were never taken up by the Legislature. Their 
author, throughout his life, had the disappointment of find- 
ing his people in this matter, as in many others, a century, 
or a large part of it, behind himself. The later years of his 
life, from 1816 to his death, in 1826, were in some measure 
solaced by the establishment* under his eye and moulding 
hand, and largely by his unremitting personal exertions 
(nobly seconded by the late Joseph C. Cabell), of the Uni- 
versity of Virginia. This institution he founded upon a 
plan and system far in advance of any institution of learn- 
ing of like grade then in America. Among the essential 
features embodied in the original statutes of this institution 
by its founder are the independence of the schools, and the 
elective principle, gradually introduced by tentative stages 
at Harvard by the unwearied efforts and urgency of Presi- 
dent Eliot, and adopted to a greater or less extent by other 
large and richly endowed institutions of learning, nearly 
fifty years after Mr. Jefferson's views had been formulated, 
and put into practical and successful operation, continuing 
to the jiresent time. 

The reformation of the criminal law embodied in the re- 
vision was Mr. Jefferson's work At the first conference of 
the committee, when all the five members were present, one 
vast stride in ameliorating the barbarous cruelty of the 
English penal laws was unanimously agreed on. This was 
to confine the penalty of death to the two offences of treason 
and murder, abolishing the revolting practice of drawing 
and quartering. All other felonies were punishable by con- 
finement aiid hard labor, except a few, in which, against his 



10 Thomas Jefferson as a Legislator. 

protest, the majority retained what he afterwards character- 
ized as "the revoUing feature of the lex talionis." This re- 
form proved somewhat too far in advance of the times. It was 
not adopted in the form proposed, but seventeen years later 
(1796) a bill substantially its equivalent was passed. The 
spirit of the proposed act is shown in its title — "A bill for 
proportioning crimes and punishments in cases heretofore 
J capital" — and in the following paragraph from its preamble: 

^T^'Mnd forasmuch as the experience of all ages and countries hath 
shown, that cruel and sanguinary laws defeat their own purpose, by en- 
gaging the benevolence.of mankind towithiiold prosecutions, to smother 
testimony, or to listen to it with bias, when, if the punishment were 
only proportioned to the injury, men would feel it their inclination, as 
well as their duty, to see the laws observed. For rendering crimes and 
I punishments, therefore, more proportionate to each other. Be it enacted 
;; by the General Assembly, that no crime shall be henceforth punished 
.') by deprivation of life or limb, except those hereinafter ordained to be sa 
[ / punishedJ;^ 

By this bill the death penalty was removed in about 
twenty-seven felonies, including offences by free persons and 
slaves, more than the life of a generation before similar re- 
sults crowned the efforts of Romilly, Macintosh and Broug- 
ham in England.* The whole bill occupies about six pages 
of ordinary octavo print; or with the copious notes and refer- 
ences — made for his own use — to the English statutes, and 
cases, and the Anglo-Saxon laws (which last were written in 
that language, accompanied in the copy he sent to Mr. Wythe 
by a literal translation into either English or Latin), about 
thirteen pages. It is a model of condensation, without loss of 
clearness or precision, and may be seen in the publication 
of the "Writings of Thomas Jefferson," edited by his grand- 
son, T. J. Randolph, published at Charlottesville, Va., 1829,. 
Vol. I, pp. 120 to 133, where the Saxon notes are printed 
with English type for want of the t3^pe for the Saxon letters. 
The same apology cannot be allowed for the reprint made by 
Congress in 1853, in nine volumes. Some idea of the sloven- 
liness with which this work was done may be obtained from 
the fact that the appendix to the "Memoir," as Mr. Jefferson 
called it — autobiography, as the editor of the Congressional 
publication chose to call it — containing Mr. Jefferson's letter 
to Mr. Wythe of November 1, 1778, and the annotated draft 
of this bill, is copied bodily from Mr. Randolph's book, in- 

"The annual Register for 1780 shows 87 capital convictions at the Old 
Baily in that year, of which 38 were for stealing, counterfeiting, or rob- 
bery, and 49 for riot. 



Thomas Jefferson as a Legislator. 11 

chiding the foot-note apologizing for the use of the English letters 
for want of Anglo-Saxon tgpe. Hee Vol. IV, p. 140. 

Another of Mr. Jefferson's bills in the revision was that 
upon the subject of slaves. The first section, by defining 
who should be slaves, supplemented the act already passed, 
and in force since October, 177S, suppressing; the African slave 
trade. This bill " concerning slaves" was passed in 1785. 
This policy of obstructing, or suppressing altogether, the 
importation of slaves into tlie State had been one deeply 
cherished by the leading minds of Virginia from an early 
day (1G99). The Colonial Legislature had passed as many 
as three and twenty acts, having that object, before the Rev- 
olution, every one of which had been vetoed by, or by au- 
thority of, the Crown.* Against these vetoes the original 
draft of the Declaration of Independence launched one of its 
most burning paragraphs, which was stricken out in com- 
mittee. The history of this alteration is thus given by Mr. 
Jefferson : 

"The clause, too, reprobating: the enslaving; the inhabitants of Africa, 
■was struck out" (from his draft of the Dechiratiou) "in complaisance to 
South Carolina and Georgia, who had never attempted to restrain the im- 
portation of slaves, and who, on the contrary, wished to continue it. Our 
Northern brethren also, I believe, felt a little tender under those cen- 
sures; for though their people had very few slaves themselves, yet they 
had been pretty considerable carriers of them to others." 

The last of the prohibitory acts passed by the House of 
Burgesses, before independence gave the State the power to 
act, was in 1772, only four years before the Declaration was 
written; so that the wrong complained of was fresh, as well 
as of long standing. This act was accompanied by an earn- 
est petition to the Crown to "remove all restraints wdiich in- 
hibited his Majesty's Governors assenting to such laws as 
might check so very pernicious a commerce as that of 
slavery, "t 

The "Act for preventing the further importation of slaves" 
was one of the first general laws passed by the State on as- 
suming independence (9 Henning's Statutes at Large, 171). 
Section 1 provides that from that date " no slave shall be 

* By what was known as the Contract of Assiento, in the Peace of 
Utrecht, England accjuired the monopoly of the slave trade (to the dis- 
gust of the Dutch) in 1713, and thenceforth was the great slave trader of 
the world. 1 Lecky Hist, of l'>ng. 18th Century, pp. V.V.\ and loS. 

t Any one interested to pursue this subject of the steady and persistent 
resistance of the Colony of \'irginia to the slave trade may consult 
1 Tucker's Blackstone, Appendix .51, note, and 1 Minor's Institutes, Bk. 
I, ch. 14. 



12 Thomas Jefferson as a Legislator. 

imported into this Commonwealth by sea or land, nor shall 
any so imported be sold or bought." Section 2 imposes the 
jDenalty of a thousand pounds for each slave imported, and 
of five hundred pounds for every slave so bought or sold. 
Section 3 declared all slaves so imported to be free.* The 
first section of the revisor's (Jefferson's) bill "concerning 
slaves" was in these words: "That no persons shall hence- 
forth be slaves within this Commonwealth, except such as 
were so on the first day of this present session of Assembly, 
and the descendants of the females of them. Slaves which 
shall hereafter be brought into this Commonwealth, and 
kept therein one whole year, or so long at diff'erent times as 
shall amount to one year, shall be free." It is plain that 
the qualification of a year's detention in the State was in 
tenderness for the people of the neighboring States, all of 
which being slaveholding, the intercourse with Virginia 
would be materially interfered with, if their people should 
be deprived of the services of their domestics, when visiting 
Virginia for business or pleasure, or passing through her 
territories. All traveling (save along the seacoast) at that 
day was either by private carriages, driven by slave coach- 
men, or on horseback attended by a mounted body-servant 
of the same condition. 

In his "Notes on Virginia," prepared two years after the 
Report of the Revisors (1781), Mr. Jefferson says that it was a 
part of the plan of legislation agreed on by the committee 
•on the subject of slavery (not only to root up the slave trade, 
as had already been done by the act of 1778, but) to put the 
institution itself in the way of speedy extinction, by the 
adoption of the principle of post nati emancipation — that is, 
to enact that all born after the passing of the act should be 
free. " The bill," says he, "reported by the revisors does 
not contain this proposition ; but an amendment containing 
it was prepared, to be offered to the Legislature whenever 
the bill should be taken up." He proceeds to give the elab- 
orate provisions contemplated for the education of the post 
nati freedmen, in such manner, according to their capacity, 
as might best fit them for the responsibilities of a free con- 
dition; and their colonization was to be provided for in 
such place as circumstances at the time should indicate as 
the most proper. In his "Memoir," written in 1821, he re- 
marks on the fate of this scheme as follows: 

*This bill was drawn and proposed by Mr. -Jefferson, and passed with- 
•>out opposition. See Complete Works (Congressional), Vol. I, p. 38. 



Thomas Jefferson as a Legislator. 13 

" But it was found that the public mind would not yet bear the propo- 
sition, nor will it bear it even at this day. Yet the day is not_ distant 
when it must bear and adopt it, or ivorse ivill follow. Nothing is more 
certainly written in the book of fate than that these people are to be free. 
Nor is it less certain that the two races, equally free, cannot live in the 
same government. Nature, habit, opinion, have drawn indelible lines 
of distinction between them. * * * If * * it-Cenfancipation) is left 
to force itself on, human nature must shudder at the prospect held up." 

For forty years these were like the prophecies of Cassan- 
dra. The first half has now been fulfilled. Whether the 
rest was forecasted with equal prescience, only the develop- 
ments of an inscrutable future can decide. The men of 
1785, and of 1821-32, stood appalled at the cost of any 
scheme of deportation as beyond the resources of the State. 
Whether it would not in the end have been a wise economy 
to have met that strain at every sacrifice at the earlier of 
those dates, when the slave population of Virginia was esti- 
mated at 270,762, may well be doubted, if, as I believe may 
be plausibly shown, the losses in values to the white people 
of Virginia by the war between the States, including the 
slave property, was near $1,000,000,000. Another element 
of the computation is the relative wealth of the State as it 
is, and as it would have been, if emancipation had been ac- 
complished early in the present century. And again, we 
have not seen the end of the negro question in America, 
nor do we know what expenses it may yet entail. 

In the mass of legislation for his State prepared by Mr. 
Jefferson on her new departure, not only as an independent 
Commonwealth, but as one founded on principles of pure 
republicanism, some of the laws were necessarily of a kind 
liable to changes with the advance of society, the growth of 
population, and the changing conditions of the community. 
This was especially the case with the acts which had for 
their object the organization of the courts, providing the of- 
ficers to administer the government, and defining their du- 
ties, their terms of office, modes of selection, &c. Others 
were original departures, intended, and effectual, to work a 
radical change, in the texture and condition of society. Of 
the latter chiss were those whose importance largely influ- 
enced Mr. Jefferson to prefer service in the State Legislature 
from 1776 to 1779 to a seat in Congress. 

"I considered," he said, in his "Memoir," "four of these bills passed/ 
or reported, as forming a si/sttm by which every li])re would be eradi-IJ 
cated of ancient or future aristocracy, and a foun<hition laid for a govern- / 
nient truly republican. (1) The repeal of the laws of entail would pre-;\ 
vent the accumulation and perpetuation of wealth in select families, and j] 



14 Thomas Jefferson as a Legislator. 

, I preserve the soil of the country from being daily more and more ab- 

1 [sorbed in mortmain. (2) The abolition of primogeniture, and the equal 

, partition of inheritances, removed the feudal and unnatural distinctions 

/ which made one member of every family rich and all the rest poor. 

•(3) The restoration of the rights of conscience, relieved the people from 

taxation for the support of a religion not theirs; for the establishment 

was truly of the religion of the rich, the dissenting sects being entirely 

i I composed of the less wealthy people ; and (4) These, by the bill for gen- 

ieral education, would be qualified to understand their rights, to main- 
tain them, and to exercise with intelligence their parts in self-govern- 
ment. And all this would be effected without the violation of a single ^ 
_ .-- natural right of any one individual citizen." / , . T»a # 

A snarling criticism upon so' much of this " system " as 
was intended to remove the feudal privileges of 'primo- 
geniture, and the preference of males in the heirship of 
real property, has been imputed to George ]\Iason, to the ef- 
fect that " neither Jefferson, Wythe, nor Pendleton had a 
son." This does Mr. Mason, whom Mr. Jefferson describes 
as " a man of the first order of wisdom," great injustice ; 
because in the conference of the full committee of revision, 
Mason supj^orted these reforms. But apart from that, it im- 
putes folly to this wise republican. At the time of the re- 
visal Mr. Jefferson was only thirty-three to thirty-six years 
old, and his wife was in the prime of life. As we learn from 
his biographer, they had a son born pending the revision, 
and three children born subsequently. The criticism 
would impute to him incredible foresight in anticipating 
(what proved to be the fact) that these would all be girls. 
/^ "^ .""^ This revision, in which much the largest and vastly the 
most important part fell to the young jurist of thirty-three, 
was an exploit of which it is difficult at this distance of 
time even for lawyers, and impossible for laymen, fully to 
appreciate the magnitude. Some of the changes were so 
^Nj'-' radical, so novel in the experience of mankind, so far reach- 

\ ing in their effects upon society, so difficult to embody in 

statutes at once concise, simple, and clear, that only those 
who have had experience either in drafting important laws or 
in watching the effects in their administration of important 
statutor}^ changes, can realize the difficulty of the under- 
taking or the marvelous skill and foresight with which Mr. 
Jefferson wrought as a legislator. As an illustration of this 
it is worth while, even to readers who have no acquaintance 
with technical law, to consider the Virginia '' statute of de- 
scents." This bill became a law in October, 17S5. Under 
the common law of England which was superseded by it, 
an inheritance was required always to descend to the issue 
of the person last in actual possession of the estate, owning 



^ 



Thomas Jefferson as a Legislator. 15 

an estate of inheritance, but it never lineally ascended. A^ 
father could not inherit from a son or a grandfather from a 
grandson under any circumstances. The male issue was 
preferred before the female, and of males the eldest alone 
took the whole estate ; but if there was no male heir at all 
to deprive them, the female heirs took as parceners, that is, 
.all together, in equal shares. Lineal descendants represented 
their ancestor in infinitum. On the failure of lineal de- ; 
■scendants of the last owner, the only collateral relations who 
could inherit were those "of the blood of the first purchaser," 
and the collateral heir must be a kinsman of the uihole blood' 
(that is, a kinsman, say a cousin, at ten or twenty removes,' 
would be preferred to a half brother who under no circum-, 
stances could succeed). These rules are (briefly stated) the'' 
commo'n law "canons of descent," by which English inheri-i 
tances were governed, and largely are still. \ 

Now, by ]Mr. Jefferson's act in Virginia, every one of them ! 
at one stroke was swept away. The estate was required to , 
pass in parcenary (that is, in equal shares where a class of ' 
heirs come in), first, to the children and their descendants. 
This rooted up both the preference of males over females 
and of the oldest male over the other children of both sexes. 
If there be no child nor the descendant of any, to the father, 
and if no father, to the mother, brothers and sisters and 
their descendants. If these be all wanting, the estate is di- , >^ 
vided into two moieties, one going to the paternal and the / ^ 
other to the maternal kindred, and if there be no kindred 
on one sidcj^the whole goes to the kindred on the other side 
in the following course : 1. To the grandfather, if one be 
living. 2. If none, to the grandmother, uncles and aunts 
on the same side and their descendants. 3. If none of these, 
to the great grandfathers or the great grandfather, if there 
be but one. 4. If none, to the great grandmothers or the 
great grandmother, if there be but one, and the brothers 
and sisters of the grandfathers and grandmothers and their 
descendants. And so on without end, passing to the near- 
est lineal male ancestors, and for want of them, to the near- 
est lineal female ancestors in the same degree, and the de- 
scendants of such male and female ancestors. If there be 
neither paternal nor maternal kindred, the wliole goes first 
to the husband or wife, and if neither, to the kindred of the 
husband or wife as if he or she had died entitled to the es- 
tate according to the course above set out. When some of 
the heirs are of the whole blood and others of the half | 
blood, the latter take half so much as those of the whole 



16 Thomas Jefferson as a Legislator. 

blood. When a class inherits, all of the class take per capita,. 
if all the class be living. If some have died leaving de- 
scendants, such descendants take yer stripes (or by stocks), 
that is, the share their deceased ancestor of the class would 
have taken if alive. Advancements made to children by a 
parent are to be brought into hotch-pot with the estate de- 
i scended. Alienage of an ancestor is no bar to tracing a de- 
scent through him. Bastards may inherit and transmit 
inheritance on the part of the mother. Marriage and re- 
cognition by the father, legitimates children born out of wed- 
lock, and the issue of marriages deemed null in law are 
, nevertheless legitimate. 
j^ /^Thus every shred of the pre-existing (English) law of de- 
^ ^ scents was demolished, and a scheme based on new princi- 
ples, contradictory to it, was substituted in its place. The 
act as adopted (and it was adopted j)recisely as Mr. Jefferson 
drew it), consists of eighteen clauses and occupies a-little 
; over a single page in the Statute Book^ One feels that to 
(5' state this matchless piece of work in otnfer than its author's 
A^ words is little short of profanation, and I am tempted to 
give its text in a note, but forbear. 
J' y. Now it has not been without definite purpose that so much 
V' of the substance of the act has been stated, even at the peril 
^- of disgusting the lay- reader. It was needful to illustrate 
I what now follows. Under the provisions of this new act, 
which subverted and reversed all the rules which had pre- 
viously existed in the State, all the real estate which has 
descended in Virginia to the heirs of the generations of a 
hundred years, has passed to those entitled by these pro- 
visions. So precise, so comprehensive and exhaustive, so 
simple and clear, were the terms in which they were ex- 
pressed, that in the experience of a completed century hut 
one single doubt as to the construction and effect of any part of 
, it has arisen. That single doubt was resolved by the case of 
(i Davis V. Rowe, 6 Randolph, 355.,.^ The doubt was this. It 
was provided that when a class of heirs came to the inheri- 
tance, if all were alive, they should take per capita equal 
shares. If some were living and others of the class were 
dead, leaving descendants, the living members of the class 
take as before, while the descendants of the dead members 
were to take per stripes ; that is, they take the share their 
dead ancestor would take if alive. There was a third case 
possible, not exp)ressly provided for, namely, when all of the 
class were dead, leaving descendants, should those de- 
scendants take per capita or jjer stripes f 



Thomas Jefferson as a Legislator. 17 

Anthony Gardner, a wealtliy bachelor, died. He had 
had one brother and one sister, both of whom had died be- 
fore him, leaving issue who survived Mr. Gardner. The 
brother left one child, Mrs. Davis. The sister left two sons, 
who were living at A. G's death, and two families of grand- 
children, the issue of two daughters who had died be- 
fore Anthony Gardner. Was Mrs. Davis to stand in the 
place of her father and take one-half of her uncle's estate, 
th* other half being divided among her cousins, one-eighth 
to each ; or, as she and her cousins were all alike the ne- 
phews and neices of their uncle, was the estate to be divided 
into five equal parts, one of which should go to Mrs. Davis, 
one to each of the Rowes, her living cousins, and one pass 
to each family of the dead cousins ? The difference to Mrs. 
Davis was between one-half and one fifth, and was worth a 
struggle. A powerful effort was made by very able counsel 
to maintain her claim to one-half the property by the ap- 
plication of the English canon of the jus representationis. The 
decision was against her. The court, in a discussion spoken 
of by Chancellor Kent as one " marked by great industry 
and legal erudition," held that the statute of descents was a 
total destruction of each and all of the rules of the common 
law of descents, including the jus representationis ; and that 
it furnished a complete rule in itself; that while the case 
before the court was not expressly provided for, the act con- 
tained the principle which governed it, namely, that it fol 
lows the natural course of the affections of the heart, pre- 
ferring as heirs the classes nearest in blood, and in the same 
class giving the individuals nearest the intestate larger por- 
tions, and allowing those more remote to take per stripes. 
After this decision, the ruling of the court was incorporated 
into the act by an amendment. 4- 

While in regard to this statute it may be said, as prob-/ 
abl}'- could not be said of any other specimen of humanj 
legislation of the like importance, that in a hundred vears 
but one doubt could be raised as to the meaning and effect 
of any part of it, a single section added by the LegislaturQ • 
in 1790, by another hand, to meet a special and compara- 
tively rare state of facts, has been a fruitful source of litiga-iu 
tion. The cases in which inheritances pass under thial 
change in the scheme of Mr. Jefferson's bill are probably! 1 
not one-tenth of one per centum in number or value, oi\ 
those which are controlled by the rest of the statute ; yet 
while no question can be raised as to his workmanship, the 
amendment has given rise to quite a swarm of cases in the 
2 



18 Thomas Jefferson ns a Lcf/islafor. 

I Supreme Court of the State to construe its meaning and 
\ effect.- Such is the difference between perfect and imper- 
ii: 'feet workc. 

jy It would be an extremely interesting study to trace how 

far these various acts and proposed bills of which Mr. Jeffer- 
l, son, while still a young man, was the author, were original 
Kvith him, as law reforms. Many of them embodied the 
earliest advances in the way of reform to the condition of 
statute law, made by any English-speaking people on either 
side of the Atlantic, so far at least as I have been able to 
ascertain. For example : the act defining citizenship con- 
tained, I believe, the first statutory declaration of the right 
of expatriation. His amelioration of the brutal severity of 
the English and colonial criminal law was man}^ years in 
advance of any substantial step in that direction in Great 
Britain, where, as late as 1828-30, Lords Eldon and Tenter- 
den were obstructing what the Report of Revision offered in 
1779, and the Legislature adopted in 1796. His drafts of 
the bills for general education by the State were, it is be- 
lieved, many years before such an attempt was formulated 
anywhere else in the world. His act of 1778 was the first 
abolition and prohibition of the African slave trade. On 
this cherished policy of Virginia, to which she had adhered 
from 1699, and which she introduced into her deed of cession 
of the Northwest Territory, she was outvoted in the Conven- 
tion which framed the Federal Constitution, and had to sub- 
mit to see it superseded for twenty years b}" the " supreme 
law." But Mr. Jefferson never lost sight of it. In his mes- 
.sage in 1806 he calls the attention of Congress to the approach 
of the period when under the Constitution it would have 
power to prohibit the slave trade, and suggests timely pros- 
pective legislation, so as to take away all pretext that expe- 
ditions bad been set on foot before it could be known that 
prohibitory acts would be passed. Mr. Jefferson was the 
owner of immense bodies of unimproved, lands. His con- 
sistent action on this subject was therefore disinterested, as 
well as early, dating from a time before the l)irth of the 
1 movement in England. He was legislating prohibition 
when Thomas Clarkson was a school bov. 

The Virginia Bill of Rights (1776) and the statute of Re- 
ligious Liberty were the first formal sovereign declarations 
of their kind in Christendom. They struck the key-note of 
modern progress towards real freedom of religious opinion — 
tlie sovereign right in each individual imax to regulate his 
raith and his religious associations according to tlie dictates 



TJiomas Jefferson as a Legislator. 19 

of Ids own conscience. It was not " toleration," but freedom 
of belief, absolute and universal, first then made a funda- 
mental law, under which no form of persecution could be 
possible. So again with the acts abolishing estates tail, the 
preference for males and primogeniture. Estates tail ap- 
pear to have survived in some of the States for many years. 
In most of them the effect of that kind of settlement of 
property, in keeping up the wealth and consequence of 
families, was greatly impaired by provisions a'ffording easy 
means of docking the entail, as by the mere deed of the ten- 
ant in tail in possession. Virginia led the vanguard in 
their deletion. New York followed in 1782; North Carolina 
in 1784; Kentucky in 1706; New Jersey in 1820. In Mary- 
land, Pennsylvania, Georgia and the New England States 
they have lingered in a more or less crippled condition, far 
into the present century. 

So, too, j\Ir. Jefferson was the first legislator using the 
English language to uproot and sweep away the principle of 
primogeniture, and along with it every trace of the feudal 
rules by which preference was given to males, and to estab- 
lish, in the place of that highly artificial system, the rational 
and simple principle that real property, like personal, should 
go, on the death of the owner intestate, to those whose rela- 
tion to the owner indicates, according to the laws of natural, 
affection, that they should succeed to his estate. One con-/ 
sequence of this legislation has been that in Virginia it is 
much less the rule for persons to make wills than (as I be- 
lieve) is the case generally elsewhere. It is a common re- 
mark of men, in whose families no special cause for special 
provision in case of death exists, that " the law makes as 
good a will as they care to have." 

No one who will take the trouble to compare the work 
done by Jefierson with that of other framers of statutes of a 
general nature, can fail to rise from such comparison with 
the conviction that he was a master workman of the highest 
order. Great achievements in codification have been made 
from time to time, from the days of Justinian to the present 
— I had nearly said to the days of David Dudley Field. 
The Code Napoleon has stood the test of nearly three quar- 
ters of a century, and throughout the world is recognized as 
vindicating the Emperor's boast, " I shall go down to pos- 
terity witli the Code in my hand." Many of the great Eng- 
lish statutes have dealt with special subjects in a masterly 
way. Much work of the same qualit}^ has been done in the 
United States, especially in the earlier Congresses, in not a 



20 Thomas Jefferson as a Legislator. 

little of which the hand of Mr. Madison may be regarded as 
visible.^ But however admirable the style in which such 
work has been done elsewhere or in other times, I believe 
' that, beyond all cavil, the Virginia Statute of Descents is the 
only important statute in the history of human society which 
in a century of experience has given rise to but one single 
controversy as to the meaning and effect of any of its provi- 
sions. In all the essentials of excellence it is unique. Ex- 
, haustive, precise, perspicuous, simple, comprehensive, it is 
I j the only know^n specimen of human legislation which came 
■ ' from the hand of its author simply perfect. I sa}^ " perfect," 
for while one question over sixty years ago was raised as to 
its effect, the decision determined that the case was not casus 
omissus, but that it was ruled by the principles embodied in 
\ithe act^^ 

; In view of the quality of this statute, it may fairly be said 
/ that if Mr. Jefferson had done nothing else as a legislator 
' than to frame it as he did, that single exploit would suffice 
to entitle him to a place in the front rank of the law makers 
' of the world. But when we remember that in the few years 
I of his service in legislative bodies he was the author and 
draftsman of most of the acts moulding the frame of the 
first constitutional representative republic, organizing its 
government, establishing its judicature, reforming its civil 
and criminal codes, anticipating in these reforms those en- 
tered on elsewhere by years in most cases, and by many 
years in many others; that he was always in the lead in 
law reforms, striking out principles and stamping them on 
ithe life of the state and country, embalming them in laws 
so eloquent in their untechnical simplicity and exactness 
that no change was ever an amendment, — I say, when these 
'things are considered, it cannot be doubted that in this com- 
-paratively youthful legislator we find one of the first law- 
makers of modern times. 

j Indications are not wanting that society in Great Britain 
ihas outgrown the half- feudal common law of real property. 
The recent striking article of Sir J. F. Stephens on this sub- 
ject is a significant indication that the law of inheritance 
there will not be much longer endured. When the time 
shall come for pulling down, and the work of reconstruction 
must be done, English lawyers and legislators may find in 
the Virginia Statute of Descents the work ready done to 
their hands, over a hundred years ago. 
Lynchburg, Va., January 5, 1881. -"Y^ 



LEJa'12 



